that substantively negate or restrict the essence of the right of peoples to
dispose of their wealth and natural resources shall not be protected under
Article 21(3).
17. It is important to note that the qualification on the right of peoples to
freely dispose of their wealth and natural resources under Article 21(3) is
itself circumscribed under Article 21(5). This latter provision imposes a
pre-emptory obligation on the State to ensure the protection of their people
from all forms of foreign economic exploitation. States should thus prevent
the abuse of natural resources by foreign or international economic actors.
The implication of this is that the terms between a State and extractive
industry investors on financial revenues arising from exploitation of natural
resources should not be much lower than international standards and hence
exploitative. Similarly, the terms on the tax break and duty free privilege
benefits to extractive industries, as well as concessions arising from jointventures, should not be of such a nature that it deprives the people of the
benefits to which they are entitled.
18. Existing bilateral and multilateral agreements between states, or with
international financial institutions, that are not in line with Article 21(5)
should be revised or renegotiated. The negotiation of such agreements
should include the minimum guarantees under Article 21 of the African
Charter including responsibility of international economic actors for the
human and peoples’ rights consequences of their activities and for fully
meeting all fiscal obligations and respecting internationally acceptable labour
and environmental standards. Any clause in such agreements that protects
such entities from liability, or grants them immunity from accountability for
the adverse human and peoples’ rights or environmental consequences of
their activities would be deemed contrary to the guarantees under Article 21
of the African Charter.
19. State parties are also obliged, under Article 21(4) to “individually and
collectively exercise the right to free disposal of their wealth and natural
resources with a view to strengthening African unity and solidarity”. While
this is an obligation imposed on State Parties vis-à-vis other African States,
the benefit of such cooperation would also accrue to the people of the
States, and citizens should thus be able to require that their governments
comply with this provision.
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